January 20, 2008

A Value for Entertainment Law: Meritocracy

Is there a theoretical grounding to entertainment law? Should there be?

As law professors and students are well aware, ascribing and using a philosophical premise has been a major scholarly goal for many fields of law. Tort law, some say, should promote economic efficiency. Property law, some say, should have a philosophical grounding in labor-desert theory.

Entertainment law is usually not taken quite so seriously. Theory? Philosophy? Isn’t the very notion of “entertainment law” legerdemain? It’s a sexy course to put in the catalog, one might say, but it’s not really a coherent field of law. It’s just a hodgepodge of torts, contracts, intellectual property, labor law, and employment regulation, all flavored with bright lights and Hollywood glam.

But I think entertainment law is a real field, deserving serious theoretical attention in its own light. Think of entertainment law as a collection of laws that presses the entertainment industry into a certain mold. The movies, television, and music that largely defines our culture is squeezed out of that mold. Entertainment law, when you think about it that way, is incredibly important. Since society’s views of itself are largely mediated through headphones and cathode-ray tubes, entertainment law helps define our identity.

Thus, entertainment law deserves a theoretical grounding. That foundational philosophy should be, I believe, meritocracy.

When looking at an aspect of entertainment law, we ought to ask, does it help the best people bubble to the top? Does it help the best movies reach our theaters? Will it leave us, in the end, more entertained, or less?

Currently, the entertainment industry in Hollywood is not much of a meritocracy. Careers are largely advanced on connections, familial ties, luck, the repayment of favors, and, of course, the hazing process known as “paying your dues.” Risk-averse producers push ahead with sequels and film versions of established properties (e.g., comic books), preferring to cover their behinds with safe investments instead of seeking the most deserving projects.

Where movies are greenlit and careers are made on any basis other than merit, entertainment and culture suffer.

Here are some questions we should be asking:

Does entertainment law encourage the best, brightest and most talented folks to embark on a career in Hollywood? Or does the law encourage irrational people who’ve made poor risk assessments to move across the country to L.A. to try to “make it” in Tinsel Town?

Does the fact that so many on-screen personalities have famous relatives mean that we are being deprived of seeing even more talented individuals who don't have those connections?

Is the current slate of writers, actors, and directors out there the best we could have?